Lwamatarama & 7 Others v Kaganda & 2 Others (Miscellaneous Application 3 of 2023) [2023] UGHC 361 (5 May 2023)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MASAKA MISCELLANEOUS APPLICATION NO.3 0F 2023 (ARISING FROM HIGH COURT CIVIL APPEAL NO.77 OF 2017)**

### **1. LWAMATARAMA**

- **2. KAMATENESI** - **3. KASHEMEZA** - **4. ASIIMWE JAMES** - **5. KURUBAKANYA** - **6. KWIZUKA** - **7. KADIHORI** - **8. LWAKABUGANGA::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANTS.**

### **VERSUS**

- **1. KAGANDA GEORGE LUGOBE** - **2. JJEMBA JAMES** - **3. NAKIVUMBI SANDRAH** - **LUGOBE::::::::::::::::::::::::::::::::::::::::RESPONDENTS.**

## *Before; Hon. Justice Victoria Nakintu Nkwanga Katamba* **RULING**

This Application is brought under Article 126(2) of the 1995 Constitution of the Republic of Uganda (as amended), Section 33 of the Judicature Act Cap 13, Sction 64(e) and 98 of the Civil Procedure Act Cap 71 and Order 22 Rules 26 and 89(1) of the Civil Procedure Rules SI 71-1 seeking orders that;

1. A stay of execution doth issue restraining the Respondents, their servants/Agents or any person acting on their behalf from executing and or enforcing the judgement, decree and orders of this Honorable Court in HCCA No.77 of 2017 pending the disposal of the Applicant's Appeal in the Court of Appeal.

- 2. The costs of this Application shall abide by the outcome of the Appeal - 3. The Court grants any other relief which the Honorable Court may deem fit.

The grounds in support of this Application are contained in an affidavit deponed by Asiimwe James, the 4th Applicant where he states as follows;


1. The Applicants were sued by representatives of the estate of late Lugobe Willian vide Civil Suit No. 17 of 2006 in the Chief Magistrates Court of Masaka at Sembabule for trespass on land comprised in Ranch 18A/ LRV 3562 Folio 24 in Sembabule District.

2. The suit was heard and dismissed on grounds that the Applicants who were the Defendants in the suit were *bona fide* occupants.

3. An appeal was lodged to the High Court vide HCCA. No.77 of 2017 where the High Court reversed the decision of the Trial Court, finding that the Applicants are not bonafide occupants. The Court also issued an eviction order and compensation order against the Applicants.

4. The Applicants being dissatisfied with the decision, instructed their lawyers to pursue an appeal to the Court of Appeal.

5. The Applicants also instructed their lawyers, M/S Lubega and Buzibira Co. Advocates to apply for an interim order and a substantive stay of execution pending determination of the Appeal to the Appellate Court.

6. The orders were duly granted by this Court.

7. That their lawyers, specifically Mr. Richard Buzibira assured the Applicants that he was diligently following up the filing of their Appeal to the Court of Appeal and that he had duly filed the Appeal.

8. On 14th December 2022, the Applicant was served with a notice to show cause why execution should not issue fixed for hearing on 21st December 2022 by the Chief Magistrates Court of Sembabule and execution for costs had also issued against the Applicants.

9. The Applicants discovered that their lawyer has never filed an Appeal contrary to the Applicants' expectations and the lawyers' assurances.

10. The Applicants further discovered that their lawyer had been served with taxation hearing notices but he neither informed the Applicants nor attended the hearing.

11. That He tried to reach out to the lawyers but in vain.

12. As a result, he engaged the services of other lawyers, M/S BKA Advocates to represent the Applicants.

13. Subsequently, an appeal was filed and that the lawyers also filed an application for validation of the Appeal.

14. The Appeal in the Court of Appeal has a likelihood of success.

15. That if execution is to issue, the Applicants shall be evicted from the suit land and they have nowhere else to go and they shall be deprived of shelter and livelihood since their farms are on the suit land.

16. That execution would render the Appeal nugatory.


An Affidavit in reply to the Application was deponed by Jjemba James, the 2nd Respondent, where briefly, he states as follows;

1. That the circumstances do not warrant a grant of the reliefs sought.

2. That other than the notice of appeal, the Applicants have not filed an appeal which is the basic requirement for a grant of the reliefs sought.

3. That the Applicants waited almost 3 years after the Judgement before filing an appeal.

4. That the Applicants only acted after receiving a notice as to why execution should not issue.

5. That the Application is intended to delay the Respondents from enjoying the fruits of judgement.

In an affidavit in rejoinder, Asiimwe James, reiterated that the Applicants had duly filed an Appeal under COACA No.527 of 2022 and the same had already been served on Counsel for the Respondents. It is my observation that the other contents of the Affidavit are a repetition of the contents in the Affidavit in support of the Application and I shall therefore not reproduce them.

Both Parties filed written submissions.

### **Submissions in support of the Application**.

Before delving into submissions on the merits of the Application, the Applicants raised a point of law challenging the validity of the Affidavit in Reply and the annexes thereto.

It was submitted for the Applicants that the Affidavit in reply was filed out of the time. While citing Order 8 Rule 1(2) and Order 12 Rule 3(2) of the Civil Procedure Rules, it was submitted for the Applicants that the reply ought to have been filed within 15 days but it was filed 39 days after service of the Application on the Respondents. The Applicant sought on order striking off the record, the Affidavit in reply.

On the annexes to the affidavit, Counsel relied on the Rule 8 of the Commissioner of Oaths Rules in the Schedule of the Commissioner of Oaths Act to support his submission that the annexes to the affidavit were not properly sealed as required by the Rule. Counsel relied on the case of Mukesh Babubhai Shukla versus Electoral commission and another, HCMA No.340 of 2021, where it was held that compliance with Rule 8 of the Schedule to the Commissioner of


Oaths Act is mandatory and cannot be cured by Article 126(2)(e). Counsel sought an order that the annexes be struck out for failure to comply with Rule 8.

In addressing the merits of the Application,

Counsel relied on the case of Hon. Theodore Ssekikubo and others versus Attorney General and others, SCCA. No.3 of 2014 to establish the requirements Court considers to grant a stay of execution which are;

- 1. The Applicant must show that they lodged a notice of Appeal. - 2. The Applicant must show that substantial loss may result if stay of execution is not granted. - 3. That the Application for stay has been brought without reasonable delay. - 4. That the Applicant has given security for the due performance of the decree or order.

Counsel further submitted that the list was expanded in the case of Kyambogo university versus Prof. Isaiah Omollo Ndiege, COAMA. No. 341 of 2013 to include proof of;

- 1. Eminent threat of execution. - 2. The appeal not being frivolous and having a high likelihood of success. - 3. Infliction of more hardship in the stay is not granted.

Counsel submitted that the Applicants lodged a notice of Appeal and that they have also filed their appeal. Counsel conceded to the fact that the appeal was filed late but he attributed it to the negligence of the previous Counsel. Counsel further submitted that the negligence of the Appellants previous Counsel should not be visited on the Applicants. It was also submitted that the appeal is not frivolous.

It was also submitted that the Applicants will suffer substantial loss if the decree is executed because they shall be evicted from the suit land which is a source of shelter and livelihood for their families which will also create hardship. It was further submitted that the execution would also result in physical, emotional and psychological pain and torment because the Applicants have been in occupation of the land for 40 years.

Counsel conceded that there was a delay in bringing the application however, Counsel submitted that the delay is attributed to the negligence of the Applicants' previous lawyer.


On depositing security for due performance of the order, Counsel submitted that this requirement was never meant to fetter the right of appeal and that the financial status of a party should be put in consideration. Counsel submitted that the Applicants are peasant farmers and as such, Court should be lenient while considering the requirement of security for due performance of the decree.

Counsel also submitted that there was an eminent threat of execution since the Applicants were already served with a notice to show cause why execution should not issue.

In reply to the points of law raised by the Applicants, counsel for the Respondents conceded to the fact that the affidavit in reply was filed out of time. Counsel attributed the delay to a pending Application by the Applicants for an interim order and that the same remains pending to date. Counsel however appealed to the Court to invoke its discretion under Section 96 of the Civil Procedure Act to enlarge time within which to admit the affidavit in reply in the interest of justice.

On the annexes to the affidavit in reply not complying with rule 8 of the Schedule to the Commissioner of Oaths Act, Counsel conceded to the annexes not being compliant with the requirements of Rule 8. In considering the case of Namboowa Rashiida versus Bavekuno Mafumu and Another, Election Appeal No.69 of 2016 as cited by Counsel, it is this Court's opinion that it is Counsel's submission that the failure to commission annexes to the affidavit does not affect the validity of the affidavits themselves.

In opposition to the merits of the Application, Counsel submitted that filing of a notice of appeal is insufficient to warrant a grant of an order staying execution. It was Counsel's submission that the Applicant failed to substantiate on how their appeal has a likely hood of success.

On irreparable damage, Counsel submitted that the assertions of the Applicants are false and there is no evidence to support the fact that they will suffer substantial loss. Counsel also submitted that the Applicants are guilty of unreasonable delay having brought the Application almost 3 years after judgement was delivered.

On eminent threat of execution, it was submitted for the respondents that notice to show cause why execution should not issue is not execution in itself and as such there is no eminent threat. On Security for due performance of the decree or order, it was submitted for the Respondents that the Applicants did not indicate anywhere in the affidavit in support that they are willing to


deposit security for due performance of the decree. Counsel further suggested Ugx. 100,000,000/= as adequate security.

I have also considered the Applicants' submissions in rejoinder which I shall not reproduce because the Applicants' to a greater extent reiterate their submissions in support however, I shall refer to them in resolution of the merits of the Application.

Having carefully considered the affidavits in this Application and the submissions of the Parties, I now turn to determination of the Application starting with the Preliminary points of law raised by the Applicants pertaining to the affidavit in reply.

### 1. **That the affidavit in reply was filed out of time and it should be struck out**.

Counsel for the Applicants relied on the case of Stop and See (U) Ltd versus Tropical Africa Bank Ltd, HCMA No.333 of 2010 to support his submission that the an affidavit in reply filed out of time out to be struck off. On the other hand, Counsel for the Respondents relied on the case of the Ramagarhia Sikh Society and others versus The Ramagarhia Sikh Education Society Limited and others, HCMA. No.352 of 2015 to support the submission that the Court can exercise its discretion under Section 96 of the Civil Procedure Act to admit the affidavit out time in the interest of justice.

As much as in both authorities, the affidavits in reply were filed out of time, I am persuaded to follow the decision in the case of Ramgarhia Sikh Society and others versus The Ramagarhia Sikh Education Society Limited and others (supra). In Stop and See (U) Ltd versus Tropic Africa Bank Ltd (supra), the affidavit in reply was filed more than six months after the time within which to file an affidavit in reply while in the Ramagarhia case(supra) the delay was less 3 months. In the application before this Court, the affidavit was filed less than two months. Secondly, in Stop and See (U) Ltd (supra). The Learned Judge even after striking out the affidavit reply, allowed the Respondents to address Court on the merits of the Application. Participation of the Respondents in the proceedings was still permitted. It is therefore my opinion that in both cases, the interest of justice was paramount.

This Court observes that the Applicants shall not suffer an injustice if the Affidavit in reply is admitted even though it was filed out of time.


It is this Court's opinion that it was never pleaded by the Applicants that they suffered any injustice as a result of delay in filing of the reply. As a matter of fact, the Applicants even filed an affidavit in rejoinder. It is also this Court's opinion that in this Court exercising its discretion under Section 96 of the Civil Procedure Act by admitting the affidavit in reply though filed out of time, will enable a full and exhaustive resolution of the issues between the parties which is in the interest justice.

I am therefore inclined to exercise Court's discretion under Section 96 of the Civil Procedure Act and admit the affidavit in reply out of time for the reasons set out.

I therefore over rule the first preliminary objection

### 2. **That the annexes to the affidavit in reply should be struck out for failure to comply with Rule 8 in the Schedule to the Commissioner of Oaths Act.**

As earlier observed in the ruling, Counsel for Respondents conceded that the annexes to the affidavit were never commissioned. In *Uganda Corporation Creameries Ltd and another versus Reamaton Limited, CACA No.44 of 1998*, it was held interalia that failure to commission annexes to an affidavit does not affect the validity of the affidavit itself. It was further observed that where annexes are not in dispute, they should be admitted because justice should be administered without undue regard to technicalities.

It is my observation that the contents of the attachments to the Affidavit are not in dispute but rather the main concern is that the annexes were not commissioned. As a result, I find it in the interest of justice to admit the annexes.

The 2nd Preliminary objection is also overruled.

In turning to the merits of this Application, the case of *Hon. Theodore Ssekikubo and others versus Attorney General and others, SCCA. No.3 of 2014* establishes the requirements Court considers to grant a stay of execution which are;

1. The Applicant must show that they lodged a notice of Appeal.

2. The Applicant must show that substantial loss may result if stay of execution is not granted.

3. That the Application for stay has been brought without reasonable delay.

4. That the Applicant has given security for the due performance of the decree or order.

As rightly submitted by Counsel for the Applicants, the case of *Kyambogo university versus Prof. Isaiah Omollo Ndiege, COAMA. No. 341 of 2013* adds to the considerations in Hon.


Theodore Ssekikubo and others versus AG and others (supra) and these other considerations are ;

- 1. Eminent threat of execution. - 2. The appeal not being frivolous and having a high likelihood of success. - 3. Infliction of more hardship in the stay is not granted.

On the requirement of a notice of appeal to have been lodged, it is my observation that there is no dispute that the Applicants lodged a notice of Appeal. On Court record is also a memorandum of Appeal.

#### **Substantial loss.**

In *Tropical Commodities Suppliers Ltd and Ors Vs International Credit Bank Ltd (In Liquidation) (2004)2 EA 331***,** it was held that substantial loss does not represent any particular amount or size for it cannot be quantified by any particular mathematical formulae. It refers to any loss, great or small that is of real worth or value as distinguished from loss without a value or that which is merely nominal. It is was further held that the Court ought to consider substantial loss claimed by an applicant in light of the particular facts raised by each case.

It is my observation that since execution would include eviction of the Applicants from the land, it is highly probable that the Applicants have been and are still in occupation of the land as stated in the Affidavit. According to the affidavit in support, it was alleged that the Applicants derive shelter and sustenance from the suit land and according to the Applicants, they, together with their families would further to being deprived of necessities, have nowhere to relocate in the event of eviction. No sufficient evidence has been adduced by the Respondents to counter the assertion. I find that the consequences of the eviction pending the determination of the Appeal would cause irreparable damage to the Applicants.

### **Application brought without unreasonable delay**

The Applicants conceded that there was a delay in bringing of the Application but attributed the delay to negligence and unprofessional conduct on the part of their previous lawyer. It is my observation that no evidence was adduced to dispute the fact that Applicants previous lawyers were negligent and acted unprofessionally when they did not file the appeal despite informing the Applicants that they had filed the appeal.


It is also my observation that the Applicants acted without delay upon realization of the fact their previous lawyers had not filed an Appeal as previously stated. The circumstances would be different if the delay to bring the Application had occurred even after the discovery of previous Counsel's negligence and unprofessional conduct.

I find that it would be contrary to justice to visit the negligence of Counsel on a litigant who was not privy to the actions of the Counsel. (see: *Banco Arabe Espanol Vs. Bank of Uganda, SCCA No. 8 of 1998*)

### **Security has been given for due performance of decree.**

The condition requiring an applicant to deposit security for due performance is established under *Order 43 Rule 4 (3)(c) of the Civil Procedure Rules***.**

In *John Baptist Kwanga versus Namyalo Kevina and another, HCMA. No. 12 of 2017***,** this court held that every application should be handled on its merits and a decision whether or not to order for security for due performance should be made according to the circumstances of each particular case. It was further held tha the objective of the legal provisions on security was never intended to fetter the right of appeal. It was intended to ensure that courts do not assist litigants to delay execution of decrees through filling vexatious and frivolous appeals.

In *Amuanaun Sam Vs Opolot David HCMA No 3 of 2014*, it was observed that the status of the applicant should be put into consideration in order to decide whether security should be ordered or not.

The Applicants in this Application are peasant farmers and the land subject to the Appeal is the land which they occupy and requiring them to furnish security for due performance shall greatly hinder their livelihood and subsequent pursuit of their Appeal. As result, the Court shall not require the Applicants to furnish security.

### **Eminent threat of execution.**

In *Osman Kassim versus Century Bottling Company Limited, SCCA. No. 35 of 2019***,** it was observed that execution is a process and not an even. It was further observed that execution envisages realization of the fruits of judgement which among others includes taxation.

In the instant application, it is not in dispute that the Applicants were served with notice to show cause why execution should not issue and neither is it in dispute that execution for costs was commenced against the Applicants. As such, both processes fall within the ambit of execution and it is therefore my finding that there is an eminent threat of execution.


### **Appeal has a likely hood of success.**

Likelihood or probability of success was addressed in *GAPCO Uganda Ltd v Kaweesa & Another, HCMA No. 259 of 2013,* where it was held that the Court must be satisfied that the claim is not frivolous or vexatious and that there is a serious question to be tried. It was further observed that the Law does not require Court to delve into the merits of the appeal. All that is required to be proved is that there is a serious issue to be tried by Court and that, that issue is neither frivolous nor vexatious.

One of the issues raised for appeal is the fact that the relief of general damages was never pleaded at the trial Court or on appeal to this Court however on Appeal to this Court, the Learned Appellate Judge awarded general damages. Without delving into the merits of the Appeal, I respectfully opine that this among others raises a *bonafide* triable issue as to whether a Court can issue a relief that was never sought. And as a result, it is my finding the grounds of appeal either singly or collectively raise *bonafide* triable issues.

In conclusion, I find that the Applicants have satisfied requirements to warrant a grant of an order staying execution pending the determination of the Appeal in the Court of Appeal.

I hereby issue the following Orders;

1. A stay of execution is hereby issued restraining the Respondents, their servants/Agents or any person acting on their behalf from executing and or enforcing the judgement, decree and orders of this Honorable Court in HCCA No.77 of 2017 pending the disposal of the Applicant's Appeal in the Court of Appeal.

2. The costs of this Application shall abide by the outcome of the Appeal.

I so order.

Dated at Masaka this 05th day of May 2023 and delivered electronically.

**Victoria Nakintu Nkwanga Katamba.**

**Judge.**